JUDGMENT : 1. By the impugned judgment and award dated 25.2.2003 passed in MACT Claim Case No.29/1999, the Motor Accident Claims Tribunal at Rajgarh in the District of Churu has awarded compensation of Rs.4,09,000/- to the dependents of deceased-Madan Lal, who are respondents no.1 to 7 herein. 2. The Insurer of the offending bus i.e. the National Insurance Company Limited has challenged the said award on the ground that since the driver of the bus had no driving licence on the date of accident, the Tribunal has wrongly held the appellant liable to pay compensation. 3. Another ground mentioned in the memo of appeal is that, in the FIR of the incident, a different registration number of the bus is mentioned, therefore, the claimants had failed to prove identity of the offending bus. 4. Learned counsel for the claimant has prayed for enhancement of compensation on the ground that the Tribunal has wrongly calculated the payable compensation. Since the claimants have not filed any appeal for enhancement, a question arise whether in this appeal by the Insurer, prayer for enhancement can be considered. 5. Brief facts of this case is that on 29.11.1998 Madan Lal and some others were travelling in a Jeep bearing Regn. No.HR-D-8024. A bus bearing Regn. No.RJ-03P-394, which was being driven by respondent no.4 Pawan Kumar dashed against the Jeep causing severe accident and death of two persons as well as injuries to some others. An FIR was lodged against the bus bearing Regn. No.RJ-10P-0148, however, during investigation it surface that the Engine number and Chassis number of the bus was corresponding to the Regn. No.RJ-03P-394. It also surface that just by the side of this number, another broken number plate was hanging, which was bearing no.RJ-10P-0148 and that led to wrong mentioning of the registration number in the FIR. 6. The claimants’ witness no.1 Atma Ram is driver of the Jeep, which met with the accident due to rash and negligent driving of the bus. Witness no.2 Jagdish Prasad was a passenger in the Jeep and both the witnesses were injured of the accident. They have categorically stated that bus bearing Regn. No.RJ-03P-394 had caused the accident. Insurer’s witness Moolchand Surana had admitted that at the time of accident, the bus was being driven by Pawan, however, Pawan had no driving licence. 7. Witness no.2 Jagdish Prasad was a passenger in the Jeep and both the witnesses were injured of the accident. They have categorically stated that bus bearing Regn. No.RJ-03P-394 had caused the accident. Insurer’s witness Moolchand Surana had admitted that at the time of accident, the bus was being driven by Pawan, however, Pawan had no driving licence. 7. It is evident from the documentary evidence on the record that after investigation of the case, the Police has submitted charge-sheet against Pawan- driver of offending vehicle bearing Regn. No.RJ-03P-394. The seizure memo (Exhibit-7) also depicts that the accident was caused by bus bearing Regn. No.RJ-03P-394, which was seized by the police during investigation of the case, therefore, finding of the Tribunal that bus bearing aforesaid number was involved in the accident is corroborated by the evidence available on record coupled with evidence of the respondent witness, hence the said finding stand affirmed. 8. Learned counsel for the appellant submits that the driver had no driving licence on the date of accident. It is not disputed that driver Pawan Kumar of the offending bus was holding a licence to drive heavy motor vehicle from 05.1.1989 to 04.1.1992. The said licence was renewed from 17.7.1992 to 16.7.1995 and again w.e.f. 24.8.1995 to 23.8.1998 and again on 01.12.1998 to 30.11.2001. It is worth to mention that the accident occurred on 29.11.1998, whereas the licence had already expired on 23.8.1998. 9. The respondent witness no.2 Bhanwar Lal has admitted that he did not bring the application, of the driver for renewal of the licence before the court. The witness further stated that on previous occasions, the application for renewal was accepted with late fees but the last renewal was without any late fees, therefore, it is evident that the application for last renewal was made within time otherwise late fine would have been charged. One more aspect is evident that that the accident took place on 29.11.1998, whereas the licence was renewed w.e.f. 01.12.1998, which had expired on 23.8.1998, therefore, there is delay of about three months in getting another renewal but the delay does not appear due to the latches on the part of the licence-holder, as his application without late fine was already there with the Authorities. Assuming that on the date of accident the driver had no valid licence, can it be said that the aforesaid lapse goes to the root of accident or was responsible cause of the accident. In National Insurance Co. Ltd. Vs. Swarn Singh & Ors., reported in 2004 DNJ (SC) 154, Hon’ble the Supreme Court summarized its findings in para-109, which reads as follows :- “109. The summary of our findings to the various issues as raised in these petitions are as follows: - (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act [emphasis is mine]. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recovery amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” 10. In view of the conclusion (vi) above, it cannot be said that the driver, who was holding licence to drive heavy vehicle since last 9 to 10 years without any complaint of any lapse in driving would allow the Insurer to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. Non-renewal of licence for few months especially in the facts and circumstances of this case wherein there is no material that no prior application for renewal of licence was made within time it cannot be accepted that non-renewal of licence had contributed to the accident. 11. Learned counsel for the appellant has relied upon (1) Ishwar Chandra & Ors. Vs. Oriental Insurance Co. Ltd. & Ors., reported in (2007) 10 SCC 650 ; (2) Ram Babu Tiwari Vs. United Indian Insurance Co. Ltd. & Ors., reported in (2008) 8 SCC 165 ; (3) National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala & Ors., reported in (2008) 12 SCC 701 ; (4) Bhuwan Singh Vs. Oriental Insurance Company Ltd. & Ors., reported in (2009) 5 SCC 136 ; (5) Beli Ram Vs. Rajinder Kumar & Ors., reported in AIR 2020 SC 4453 and (6) National Insurance Co. Ltd. Vs. Keshav Bahadur & Ors., reported in (2004) 2 SCC 370 . In Ishwar Chandra (supra) the licence had expired on 27.8.1994 and the accident took place on 01.5.1995. On the date of accident, there was no application for renewal of the licence. In the facts and circumstances of that case wherein the driver might have lost interest in driving of the vehicle and caused accident. As such would not apply in the facts and circumstances of the present case. In Ram Babu Tiwari (supra), the driving licence was upto 10.2.1993. The accident took place on 27.1.1996. The licence was renewed w.e.f. 7.2.1996. Evidently a person without licence cannot drive a vehicle and in this long gap of three years, the driver might not have driving the vehicle and driving of the same after three years was a serious issue of his negligence, therefore, that case is not applicable in the facts of the present case. In Vidhyadhar Mahariwala (supra) the accident took place on 11.6.2004, whereas the licence had expired on 14.12.2003 and the accident occurred on 11.6.2004. In Vidhyadhar Mahariwala (supra) the accident took place on 11.6.2004, whereas the licence had expired on 14.12.2003 and the accident occurred on 11.6.2004. The licence was renewed only w.e.f. 16.5.2005. Evidently there was long gap between the expiry of licence and renewal of the same. As it had been noticed above, in the present case the licence had expired three months back and there is no material to substantiate that there was no application for renewal of licence within the time, rather the admission of the respondent’s witness is that the last renewal was without late fees. Therefore by necessary implication prayer for renewal of licence was already there and it was the latches on the part of the Authorities of the Transport Department in not renewing the licence within time. In Bhuwan Singh (supra), a learner’s licence of the driver had expired on the date of accident and for licence an application was made only after the accident. Similarly, in Beli Ram (supra), the driving licence of the driver had expired and the same driver was the claimant before the court. In the case on hand third party are the claimants, therefore, in the facts and circumstances of the case, this Court is of the view that it is not a case wherein the driver had no valid licence, therefore, finding of the Tribunal stands affirmed, however, the appellant Company would be at liberty to institute a proceeding against the owner and driver of the offending bus to establish that the appellant is entitled to be reimbursed after payment to the third party. 12. The issue raised by the respondent-claimants that the claim can be enhanced even in appeal by the respondent Insurer in view of the provisions of Order 41 Rule 23 CPC. The said issue was elaborately considered and has already been settled in Ranjana Prakash & Ors. Vs. Divisional Manager & Anr., reported in [ (2011) 14 SCC 639 ], para 6, 7 and 8 whereof are being reproduced below :- “6…..therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal. [emphasis is mine] 7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may. 8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” [emphasis is mine] 13. Learned counsel for the claimant respondent has relied upon the judgment Parminder Singh Vs. New India Assurance Co. Ltd & Ors., reported in (2019) 7 SCC 217 and the judgment passed by a Bench of this Court in bunch of appeals led by S.B. Civil Misc. Appeal No.626/2002 (Baksha Ram Vs. Ladu Singh & Ors., decided on 16.09.2019). In both the aforesaid cases, the claimants has challenged the award and had prayed for enhancement of the same. Hence, the cases are not applicable in the facts and circumstances of the present case. 14. With the aforesaid liberty to the appellant, this appeal stands dismissed.